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Democratic Shame: The Supreme Court's View of Corruption Doesn't Ring True

Posted: 08/09/11 12:58 PM ET

Stanley Greenberg recently described the current crisis of government legitimacy. He wrote that "the nexus of money and power, greased by special interest lobbyists and large campaign donations" means that "the game is rigged" and "the wealthy and big industries get policies that reinforce their advantage." He quotes voters who say "we don't have a representative government anymore." Considering the federal government's recent performance, and with Congress's disapproval rating at an all time high of 82 percent, it's a legitimate critique.

The major justification for laws governing the financing of political campaigns is that they will prevent "both the actual corruption threatened by large financial contributions and the eroding of public confidence in the electoral process through the appearance of corruption." Unfortunately, a real roadblock to comprehensive reform is the constrained, impoverished view of corruption articulated by the Supreme Court's conservative majority. They have disavowed the Court's prior understanding of the corrosive and distorting effects of immense aggregations of wealth on a democracy

The idea that money can have deleterious influences on elections, even outside the context of bribery, goes back more than a century. The Supreme Court recognized this in McConnell v. FEC, when it found that corruption of government is "not confined to bribery of public officials, but extend[s] to the broader threat from politicians too compliant with the wishes of large contributors." The possibility that legislators will "decide issues not on the merits or the desires of their constituencies, but according to the wishes of those who have made large financial contributions valued by the officeholder" is a more subtle form of corruption than straight quid pro quo transactions, but is "equally dispiriting." And in FEC v. Beaumont, the case upholding the ban on direct corporate contributions to candidates, the Court expressed concern that corporations would "use resources amassed in the economic marketplace to obtain an unfair advantage in the political marketplace."

Money in politics leads to corruption of government not only when a quid pro quo arrangement between a campaign contribution and favorable political treatment exists. The special access and undue influence awarded to those who have financial resources to support or oppose a representative's re-election are themselves a form of democratic corruption. It leads to the rampant cynicism and civic disengagement when voters conclude that "there's just such a control of government by the wealthy that whatever happens, it's not working for all the people; it's working for a few of the people."

Regrettably, in Citizens United the Court expressly found that "the appearance of influence or access . . . will not cause the electorate to lose faith in our democracy." As evidenced by Mr. Greenberg's research, the public has a more realistic understanding than the Supreme Court of the corruption that results from campaign finance policies that allow large amounts of money to dominate elections in a democracy. The American people understand that who pays the piper calls the tune, and don't care about the formalistic distinctions that run through campaign finance jurisprudence.

The Supreme Court has moved far away from a holistic view of what corruption of a representative government looks like. In another case decided this year, Nevada Commission on Ethics v. Carrigan, Justice Scalia discussed the motivations that induce a legislator to vote one way or another, and equated a legislator voting according to his best judgment, voting against his best judgment but in the interest of his constituents, and voting against his best judgment but in the interest of his contributors. Only the first two are democratically legitimate considerations when determining the public policy of our country -- the last is a perversion of our democracy to benefit the wealthy and elite.

There are several proposals to increase transparency and accountability for money in politics. The Fair Elections Now Act would enact public financing of Congressional campaigns to break the stranglehold of special interest money. This would increase the amount of political speech available to voters, allow candidates to spend more time reaching out to voters and addressing their concerns, and supercharge the power of small donors. The draft Executive Order on disclosure of political spending by government contractors would shine a light into back-rooms and discourage political favoritism when spending taxpayer money. The Shareholder Protection Act would require companies to get permission from their shareholders and disclose the money they spend to influence elections. The 2012 elections are expected to be the most expensive ever, and awash in the secret spending should our leaders fail to enact reforms.

During the debate on the debt ceiling, polls showed that most Americans, including a majority of Republicans, were in favor of taking a balanced approach and raising revenue by closing loopholes that benefit the wealthiest Americans and special interests. And yet, once again, the result from Washington did not reflect the people's preferred policy solution. Our government is not serving their interests, and it is a democratic shame.